Norton v. Social Security Administration

Filing 12

OPINION AND ORDER denying pltf's request for relief and affirming the Commissioner's decision. Signed by Judge Kristine G. Baker on 3/27/13. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WILLIE LEVELL NORTON, JR.
v.

PLAINTIFF

No. 2:12CV00012 KGB-JTK

CAROLYN W. COLVIN,
Acting Commissioner,
Social Security Administration

DEFENDANT
OPINION AND ORDER

Plaintiff-claimant Willie Levell Norton, Jr., appeals under 42 U.S.C. § 405(g) the decision
of defendant Commissioner of the Social Security Administration 1 to deny Mr. Norton’s
application for Supplemental Security Income.

Mr. Norton asks this Court to reverse the

Commissioner=s decision and remand his case to the Social Security Administration (“SSA”) for
the award of benefits. Both parties have submitted appeal briefs. After considering the record,
the arguments of the parties, and the applicable law, this Court affirms the Commissioner=s
decision.
I.

Standard of Judicial Review

When reviewing a decision denying an application for disability benefits, the Court must
determine whether substantial evidence supports the Commissioner=s decision and whether the
Commissioner made a legal error.

See 42 U.S.C. § 405(g) (requiring the district court to

determine whether the Commissioner=s findings are supported by substantial evidence and
whether the Commissioner conformed with applicable regulations); Slusser v. Astrue, 557 F.3d
923, 925 (8th Cir. 2009) (stating that the court=s “review of the Commissioner=s denial of benefits

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Carolyn W. Colvin was sworn in as Acting Commissioner of the Social Security Administration
on February 14, 2013, replacing Michael J. Astrue. She has therefore been substituted as the defendant in
this case pursuant to Fed. R. Civ. P. 25(d).

is limited to whether the decision is ‘supported by substantial evidence in the record as a whole’”);
Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997) (“We will uphold the Commissioner=s decision
to deny an applicant disability benefits if the decision is not based on legal error and if there is
substantial evidence in the record as a whole to support the conclusion that the claimant was not
disabled.”). Substantial evidence is more than a mere scintilla of evidence; it means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion. Slusser, 557
F.3d at 925. In determining whether substantial evidence supports the Commissioner=s decision,
the Court must consider evidence that detracts from the Commissioner=s decision as well as
evidence that supports the decision, but the Court may not reverse the Commissioner=s decision
simply because substantial evidence supports a contrary decision. See Sultan v. Barnhart, 368
F.3d 857, 863 (8th Cir. 2004); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993). The Court
may not reweigh the evidence or try the issues de novo. Harris v. Shalala, 45 F.3d 1190 (8th Cir.
1995).
II.

The Disputed Issues

In this case, the parties do not dispute that Mr. Norton exhausted his administrative
remedies. See Anderson v. Sullivan, 959 F.2d 690, 692 (8th Cir. 1992) (stating that “the Social
Security Act precludes general federal subject matter jurisdiction until administrative remedies
have been exhausted” and explaining that the Commissioner=s appeal procedure permits claimants
to appeal only final decisions). Mr. Norton contends that the Administrative Law Judge (“ALJ”)
erred (1) when he found Mr. Norton did not meet Listing 1.05(B) and 1.00(B)(2)(b), (2) in failing
to consider Mr. Norton’s pain as a significant non-exertional limitation, which therefore resulted in
a deficient evaluation of Mr. Norton’s residual functional capacity, and (3) in not developing the

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record in the case. Mr. Norton also contends that he suffers from a left below-knee amputation
without prosthesis, should have been entitled to a closed period of disability, and, therefore, the
decision is not supported by substantial evidence.
III.

The Commissioner=s Decision

Mr. Norton applied for Supplemental Security Income on November 5, 2007, alleging
disability beginning November 3, 2007 (Tr. 10). The ALJ denied his applications on April 22,
2010 (Tr. 10-17). The Appeals Council denied review on November 22, 2011, and the ALJ’s
decision became the final decision of the Commissioner (Tr. 1-4). The ALJ found Mr. Norton not
disabled in his April 22, 2010 decision (Tr. 10-17).
The ALJ used the five-step sequential evaluation process. At step one, he found that Mr.
Norton had not engaged in substantial gainful activity since his alleged onset date (Tr. 12). At
step two, he determined Mr. Norton had the following severe impairments: status post below knee
amputation of the left lower extremity (Tr. 12-13). At step three, the ALJ determined that Mr.
Norton did not have an impairment or a combination of impairments that met or equaled any
impairment found in the Appendix 1 Listing of Impairments (Tr. 13-14). In addition, the ALJ
determined that Mr. Norton’s allegations of functional limitations were not totally credible and
that Mr. Norton had the residual functional capacity to perform a restricted range of sedentary
work (Tr. 14-16). At step five, the ALJ determined that Mr. Norton did not have any past relevant
work (Tr. 16). Based on vocational expert testimony, the ALJ determined that Mr. Norton could
perform work such as assembly and inspection jobs (Tr. 17, 26-27). Accordingly, the ALJ
concluded that Mr. Norton was not disabled and not entitled to disability benefits (Tr. 17). On
November 22, 2011, the Appeals Council denied Mr. Norton’s request for review of the ALJ’s

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decision (Tr. 1-4). As a result, the ALJ’s decision became the final decision of the Commissioner
from which Mr. Norton seeks judicial review under 42 U.S.C. § 405(g).
IV.

Analysis

The record evidence established that Mr. Norton was 20 years old at the time of the ALJ’s
decision (Tr. 16, 79). He alleged disability due to the amputation of his left leg (Tr. 87). Mr.
Norton has a limited education (Tr. 16), and no past relevant work experience (Tr. 16).
(1)

The ALJ’s Step-Three Finding

Mr. Norton contends the ALJ erred when he found that Mr. Norton did not meet Listing
1.05(B) and 1.00(B)(2)(b). He claims that the ALJ may not disregard his subjective complaints
solely because the objective medical evidence does not fully support them. Harris 45 F.3d at
1193.
Listing 1.05 states:
Listing 1.05 is amputation (due to any cause):
A. Both hands;
or
B. One or both lower extremities at or above the tarsal region, with stump complications
resulting in medical inability to use a prosthetic device to ambulate effectively as
defined in 1.00(B)(2)(b), which have lasted or expected to last at least twelve months;
or
C. One hand and one lower extremity at or above the tarsal region, with inability to
ambulate effectively, as defined in 1.00(B)(2)(b);
or
D. Agmipelvectomy or hip diarticulation.

20 C.F.R. Part 404, Subpart P, Appendix 1 (2005).

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Section 1.00(B)(2)(b), which is referenced in Listing 1.05, states in pertinent part:
b. What we mean by inability to ambulate effectively
(1)

Definition. Inability to ambulate effectively means an extreme limitation
of the ability to walk; i.e., an impairment that interferes very seriously with
the individual’s ability to independently initiate, sustain, or complete
activities.
Ineffective ambulation is defined generally as having
insufficient lower extremity functioning (see 1.00(J)) to permit independent
ambulation without the use of a handheld assistive device that limits the
functioning of both upper extremities.

(2)

To ambulate effectively, individuals must be capable of sustaining a
reasonable walking pace over a sufficient distance to be able to carry
activities of daily living. They must have the ability to travel without
companion assistance to and from a place of employment or school.
Therefore, examples of ineffective ambulation include, but are not limited
to, the inability to walk without the use of a walker, two crutches or two
canes, the inability to walk a block at a reasonable pace on rough or uneven
surface, the inability to use standard public transportation, the inability to
carry out routine ambulatory activities, such as shopping and banking, and
the inability to climb a few steps at a responsible pace with the use of a
single handrail. The ability to walk independently about one’s home
without the use of assistive devices does not, in and of itself, constitute
effective ambulation.

20 C.F.R. Part 404, Subpart P, Appendix 1 § 1.00(B)(2)(2005).
The Commissioner states in response that, although Mr. Norton argues the record shows he
does not have full use of his left lower extremity and that a major function was not restored or
expected to be restored within 12 months of onset, Mr. Norton has failed to provide specifics with
his argument, cites no objective evidence to support his allegation, and failed to meet his burden of
presenting medical findings equal in severity to all the criteria of a listed impairment. This Court
agrees. Marciniak v. Shalala, 49 F.3d 1350, 1353 (8th Cir. 1995).
Plaintiff has the burden to prove that his impairments meet or equal a listing. Sullivan v.
Zebley, 493 U.S. 521, 530-31 (1990). To meet a listing, the impairment must meet all of the
specified criteria in the listing. Id. at 530. “An impairment that manifests only some of these
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criteria, no matter how severely, does not qualify.” Id.
The ALJ considered the criteria and determined the Listing 1.05 had not been met or
equaled (Tr. 13). Medical evidence in the record supports this conclusion (Tr. 12-13). The ALJ
also examined whether Mr. Norton’s mental impairment met or equaled a listing and made the
finding that it did not (Tr. 13). Evidence in the record supports this conclusion (Tr. 12-13).
Substantial evidence supports the ALJ’s decision, and there is no error of law in his finding on this
issue.
(2)

The ALJ’s Consideration of Mr. Norton’s Alleged Pain

Mr. Norton contends the ALJ erred in failing to consider his pain as a significant
non-exertional limitation, which therefore resulted in a deficient evaluation of his residual
functional capacity (“RFC”). RFC is what a claimant can do despite his limitations, and it must
be determined on the basis of all relevant evidence, including medical records, physician’s
opinions, and the plaintiff’s description of his limitations. Dunahoo v. Apfel, 241 F.3d 1033,
1039 (8th Cir. 2001); 20 C.F.R. § 416.945(a). The ALJ found Mr. Norton retained the RFC for
sedentary work. Mr. Norton contends the ALJ’s conclusion as to his non-exertional limitations is
not supported by substantial evidence of record. Specifically, Mr. Norton asserts that the ALJ did
not fully consider his chronic left leg and shoulder pain (Dkt. No. 9 at 12-14).
A non-exertional limitation is a limitation or restriction which affects a claimant’s “ability
to meet the demands of jobs other than the strength demands.” 20 C.F.R. § 404.1569a(a).
Non-exertional limitations include the following: difficulty functioning due to pain; difficulty
functioning due to nervousness, anxiety, or depression; difficulty maintaining attention or
concentration; difficulty understanding or remember detailed instructions; difficulty seeing or
hearing; difficulty tolerating a physical feature of a certain work setting; or difficulty performing
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the manipulative or postural functions of some work such as reaching, handling, stooping,
climbing, crawling, or crouching. 20 C.F.R. § 404.1569a(c)(1).
Mr. Norton contends that, absent medical records from his treating physician Dr. Hall, a
determination cannot be made as to whether Mr. Norton’s impairment meets a listing (Dkt. No. 9,
at 6). It is the claimant’s responsibility to provide the Commissioner with medical evidence of his
disability. Bowen v. Yuckert, 482 U.S. 137, 146 (1987); 20 C.F.R. §§ 404.1512(a); 404.1512(c);
404.1516. It was Mr. Norton’s responsibility to present the strongest case possible. Thomas v.
Sullivan, 928 F.2d 255, 260 (8th Cir. 1991). At the hearing, the ALJ requested that Mr. Norton’s
attorney contact Mr. Norton’s treating physician to determine the likelihood of Mr. Norton’s
receiving and using a prosthetic leg (Tr. 28-29). The attorney indicated he understood and
accepted responsibility for the request. To date, Mr. Norton has not submitted the records and has
not provided an explanation for his failure to do so. An attorney’s failure to obtain requested
medical evidence suggests the evidence has only minor importance. See Onstad v. Shalala, 999
F.2d 1232, 1234 (8th Cir. 1993).
Further, when assessing pain as a non-exertional limitation, the issue is not whether Mr.
Norton has pain but instead whether his pain was so severe that it prevented Mr. Norton from
performing work. Clark v. Chater, 75 F.3d 414, 417 (8th Cir. 1996). The ALJ ordered two
consultative examinations of Mr. Norton (Tr. 12). Mr. Norton was examined by Dr. David Lee
Webber on January 8, 2008, and a mental status examination was done by Charles M. Spellman,
Ph.D. on July 1, 2008 (Tr. 12). The ALJ considered Mr. Norton’s complaints of pain and the
record before him in assessing Mr. Norton’s RFC (Tr. 14-16). The ALJ gave “great weight” to
the opinion of Dr. Spellman (Tr. 15). The ALJ determined that Dr. Spellman’s opinion was
supported by the findings on his examination of Mr. Norton as well as the assertions of Mr. Norton
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at that examination (Tr. 15). The ALJ’s RFC determination is consistent with the state agency
examiners’ assessment of Mr. Norton (Tr. 15).
Substantial evidence supports the ALJ’s decision, and there is no error of law in his finding
on this issue.
(3)

The ALJ’s Development of the Record

Mr. Norton alleges the ALJ erred in not developing the record in the case. As a result, Mr.
Norton contends the ALJ erred in determining that Mr. Norton’s complaints of severe,
unremitting, and disabling pain and limitation are not substantiated by the overall record and not
credible to the extent alleged. The ALJ stated that he applied the five-factor Polaski test. See
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).
As to Mr. Norton’s first point, Mr. Norton offers very little objective medical evidence to
support his disability claim. He admits the evidence is limited but argues the ALJ erred in not
developing the record. To demonstrate that the record has been inadequately developed, Mr.
Norton must show both a failure to develop necessary evidence and unfairness or prejudice from
that failure. Haley v. Massanari, 258 F.3d 742, 749-50 (8th Cir. 2001). The Court concludes
Mr. Norton has not met his burden here. The ALJ ordered two consultative examinations of Mr.
Norton (Tr. 12).

The ALJ considered information from these examinations in making his

findings (Tr. 12-15).
As the United States Court of Appeals for the Eighth Circuit recently explained:
[T]his argument mischaracterizes the ALJ’s burden. While an ALJ does have a
duty to develop the record, this duty is not never-ending and an ALJ is not required
to disprove every possible impairment. Barrrett v. Shalala, 38 F.3d 1019, 1023
(8th Cir. 1994). The ALJ is required to order medical examinations and tests only
if the medical records presented to him do not give sufficient medical evidence to
determine whether the claimant is disabled. Conley v. Bowen, 781 F.2d 143, 146
(8th Cir. 1986).
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McCoy v. Astrue, 648 F.3d 605, 612 (8th Cir. 2011).
As to Mr. Norton’s second point, an ALJ who determines the claimant’s testimony as to
pain is not credible must make specific findings explaining that conclusion. Ghant v. Bowen, 930
F.2d 633, 637 (8th Cir. 1991). The ALJ here did so in his consideration of the Polaski factors (Tr.
15-16). He made specific findings explaining his conclusion. See Baker v. Secretary of Health
and Human Services, 955 F.2d 552, 555 (8th Cir. 1992). He determined that the subjective
allegation and complaints of Mr. Norton with regard to pain are inconsistent in many respects and,
therefore, not fully credible to the extent alleged. They are not supported by other evidence of
record. For example, there is no evidence of record that Mr. Norton required further treatment of
the surgical site or evidence of treatment by mental health professionals for his claimed depressive
symptoms, despite taking medication at times (Tr. 16). This Court should not disturb the decision
of any ALJ who seriously considers, but for good reasons, explicitly discredits a claimant’s
testimony of disabling pain. See Reed v. Sullivan, 988 F.2d 812, 815 (8th Cir. 1993).
Further, Mr. Norton’s medical records end in November 2007 when he was discharged
from the hospital (Tr. 150-238). His lawyer stated that he had been seeing his doctor every month
for treatment, agreed to provide medical records, but failed to provide those records, despite his
agreement to do so (Tr. 28-29). The absence of medical evidence supporting a claimant’s
subjective complaints is a factor that supports the discounting of such complaints. Kisling v.
Chater, 105 F.3d 1255, 1257 (8th Cir. 1997).
Here, the record provides a sufficient basis for the ALJ’s decision. Anderson v. Shalala,
51 F.3d 777, 779 (8th Cir. 1995). Substantial evidence supports the ALJ’s decision, and there is
no error of law in his finding on this issue.

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(4)

Consideration of a Closed Period of Disability

Mr. Norton also contends that he suffers from a left below-knee amputation without
prosthesis, should have been entitled to a closed period of disability, and, therefore, the decision is
not supported by substantial evidence.
To qualify for a closed period of disability, Mr. Norton must first show that he is entitled to
disability. 20 C.F.R. § 404.316. See also Harris v. Secretary of the Department of Health and
Human Services, 959 F.2d 723 (8th Cir. 1992)(examining closed period of disability). He has not
done so here for all of the reasons stated. Substantial evidence supports the ALJ’s decision, and
there is no error of law in his finding on this issue.
V.

Conclusion

Having determined substantial evidence supports the Commissioner=s denial of Mr.
Norton’s applications for disability benefits, and the Commissioner made no legal error, the Court
DENIES Mr. Norton’s request for relief and AFFIRMS the Commissioner=s decision.
IT IS SO ORDERED this 27th day of March, 2013.

___________________________________
KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE

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